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Louisiana Vote for Unanimous Juries May Not Be Last Word

Nov. 15, 2018, 12:07 PM

Louisiana’s on its way to abolishing split jury verdicts in criminal trials, but that won’t help convicts like Evangelisto Ramos unless the U.S. Supreme Court steps in.

The court’s been reluctant to take up the issue that’s again before it after Louisiana voted to abolish the practice Nov. 6, leaving Oregon alone in permitting it.

But the new Louisiana law that applies to offenses committed beginning in January doesn’t apply retroactively, Ramos notes in his petition for high court review, filed by attorneys with The Promise of Justice Initiative in New Orleans.

To get out from under a life sentence he asks the justices to overturn precedent from the 1970s condoning split-verdicts.

“The fact that unanimity still is not a requirement for the states is a very bizarre historical outlier that’s overdue for correction,” Thomas Frampton, Climenko Fellow and lecturer at Harvard Law School, told Bloomberg Law.

“We’ve reached a point now where almost every other piece of the Bill of Rights is understood to apply not just to the federal government but also to the states,” said Frampton, a former public defender who recently published a law review article on the jury issue.

One group that could benefit from a Ramos victory if the court takes the case is the likely hundreds of defendants in the coming years “who face the prospect of non-unanimous trials in both Oregon and Louisiana unless the court acts,” he said.

Another is those recently convicted by split-juries in the last year or two, whose convictions have not yet become final on direct appeal, he said, surmising the number could be in the hundreds between the two states.

But retroactive relief is rare, Frampton noted, so it would be an uphill fight for those who have long since exhausted their direct appeals.

A spokesperson for the state attorney general declined comment beyond its brief in opposition to Ramos’ petition.

The potential retroactive effect is a reason for the court to stay out of the dispute, state officials argue in the filing.

“Thousands of final convictions in these two states could be upset if such a new rule were later declared retroactive,” they warn.

At the same time, Louisiana officials point to the dwindling number of defendants who will be affected by the issue—in light of the new Louisiana law—as another reason not to take the case.

‘Curious’ Incorporation

Ramos was convicted of murder at a Louisiana state court trial in 2016. Ten of his 12 jurors voted for guilt. That wouldn’t have led to a conviction in most courtrooms around the country.

But for Ramos—who says he was convicted based on “purely circumstantial evidence” without any eyewitnesses—it could mean death in prison.

He wants the high court to announce that the Sixth Amendment guarantee of jury unanimity applies—or is “incorporated"—to the states via the Fourteenth Amendment. The court has applied most but not all of the Bill of Rights to the states through this process.

The reasoning in the high court’s partial incorporation of the Sixth Amendment in 1972’s Apodaca v. Oregon was a “never-used-before-never-used-since theory,” Ramos argues.

The court’s “curious view on incorporation"—itself the product of a fractured opinion—has been called into question by more recent precedent, he says.

Problematic History

The justices “should strike down non-unanimous juries based on the incorporation doctrine,” said Aliza Kaplan, a professor at the Lewis & Clark Law School in Portland, Ore., whose scholarship Ramos cites in his brief.

She thinks it would be “great” if the Supreme Court takes up the issue. But she doubts the court will, in light of its refusal to do so in the past as well as the new Louisiana law, which—as the state notes in its opposition brief—means less people will be affected by split-verdicts.

Not incorporating the jury unanimity requirement here would be especially problematic, Ramos argues.

Louisiana’s non-unanimous jury rule was adopted during the 1898 Louisiana Constitutional Convention, “where the entire point of the Convention was to limit African-American participation in the democratic process and to ‘perpetuate the supremacy of the Anglo-Saxon race in Louisiana,’” his petition recounts, citing the official journal of the proceedings.

The white supremacist history of the law—brought to greater light in recent years—was one of the motivating factors in getting the Louisiana measure on the ballot.

“The Fourteenth Amendment,” Ramos argues, “was supposed to protect against these racist purposes, and the rational for incorporation is at its zenith under these circumstances.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com